We granted the petition for a writ of certiorari
to review the Court of Appeals’ conclusion the prosecutor did not commit a Doyle
[2] violation by questioning Petitioner about the fact he did not present
his alibi defense to police after he was arrested and read his Miranda
[3] rights. We reverse and remand for a new trial.

FACTS

The body of Victim, 36, was found on November 24, 1994, partially
submerged in a pond near Burnt Factory Road in rural Marlboro County. Victim
had been missing since November 12, 1994. Her ankles and hands had been bound
with gray duct tape; the tape also had been wrapped tightly around her face
and head.

The medical examiner testified Victim likely died of asphyxiation
due to the tape around her face and head. Victim probably was dead before her
body was placed in the pond, although the examiner could not rule out death
by drowning. Further, the death likely occurred between November 12 and 20,
1994, and probably closer to November 12. The autopsy revealed no physical
evidence that Victim had been sexually assaulted before her death, although
the fact Victim was a mature woman and the body had partially decomposed made
it more difficult to obtain such evidence if any existed.

Investigators examined items recovered from an abandoned house, where
Victim had been held, and from the pond, including Victim’s pocketbook, eyeglasses,
an earring, and duct tape samples. However, investigators were unable to identify
any physical or trace evidence (fingerprints, samples of hair, blood, semen,
or the like) linking Petitioner or any other person to Victim’s kidnapping and
death. The State’s case against Petitioner and other co-defendants consisted
primarily of the testimony from co-defendants, Danny Davis and Bobby Ransom.

Davis and Ransom testified they observed Victim tied up and lying
on a couch or bed during a cookout and party at two co-defendants’ mobile home.
Both accompanied several co-defendants on a trip to move Victim from the mobile
home to an abandoned house. Ransom testified he was smoking marijuana and drinking
creek liquor (a type of “white lightning” or moonshine) when several co-defendants
arrived at his house the next night and asked him to join them on a trip back
to the abandoned house. When he saw his visitors approaching, Ransom drank
the remaining half of a pint of creek liquor he had been drinking so they would
not ask him for any.

Davis and Ransom testified Petitioner and another co-defendant were waiting
when they arrived at an abandoned house where Victim had been left the previous
night. Several unidentified co-defendants carried Victim, still bound by tape,
to the car and put her in the back seat beside Ransom. Ransom testified he
began “freaking out” when the “liquor hit [him]” and he begged them to stop
Victim from “crying all over [him],” although she really was not. The eight
co-defendants - including Davis, Ransom, and Petitioner - rode in a single car
to a bridge, where unidentified co-defendants placed Victim’s body in the pond.

Davis and Ransom were cross-examined at length about their extensive history
of alcohol and substance abuse. Davis testified he suffered brain damage from
a traumatic head injury 10 years earlier, as well as anxiety, sleeplessness,
and depression. He was a victim of child abuse and had extensively abused alcohol
and illegal drugs for years. He testified he drank heavily every day during
November 1994. His alcohol use caused him to forget events and confuse things.
During his two-year incarceration preceding the trial, Davis testified he saw
nonexistent shadows, heard “a lot of [nonexistent] voices,” and talked with
imaginary friends. He was taking anti-psychotic and anti-depressant medications
during his incarceration and the trial.

Ransom testified he had been paralyzed from the chest down since 1983. In
November 1994, he had been on a drinking binge for some three years and eight
or nine months. He often blacked out and suffered from memory loss. He had
been hospitalized at psychiatric facilities three times before 1996 for abuse
of alcohol and numerous drugs, including Valium, Xanax, sleeping pills, amphetamines,
powder cocaine, crack cocaine, acid, marijuana, and “huffing” gasoline. He
drank two quarts to a gallon of alcohol each week, including creek liquor.

Davis and Ransom testified on cross-examination they were good friends who
grew up together. Davis often visited the reclusive Ransom at his house in
1994, and they saw one another frequently during a four-month period after the
crime until their arrest. Police in March 1995 brought Ransom from another
jail to see Davis in jail so Ransom could “confront” Davis about the crimes.
The two confessed to police the same afternoon at the same location, and, for
the first time, Ransom implicated Petitioner.

At his guilty plea prior to Petitioner’s trial, Davis stated, “a lot of this
stuff I can’t quite remember, but my co-defendant [Ransom] has - he’s told me
everything.” While insisting he was trying to tell the truth at petitioner’s
trial, Davis testified he had changed his story “a lot of times,” although not
every time he talked to police during fifteen to twenty interviews. He “told
[police] what they wanted to hear.” In fact, he testified he no longer had
an independent recollection of even being at the bridge that night, but based
his trial testimony on some other source.

Petitioner, then 29, denied any involvement in the crimes, testifying
he was in New York when they occurred. Petitioner testified that in 1994 he
lived in Brooklyn, New York, where he was raised. Since his childhood, he often
traveled to Marlboro County, where his father was raised, to visit family and
friends.

Petitioner testified he stayed in Marlboro County, in September 1994,
for a week or two with a friend, Butch Moore and then returned to New York.
On November 2, 1994, he left New York with two friends and traveled to Marlboro
County, again staying with Butch Moore. He returned to New York on November
7, 1994. To establish these dates, Petitioner entered into evidence a rental
car receipt. [4] He also testified
he attended his godfather’s birthday party in New York on November 9, 1994.
Petitioner tried to subpoena Moore to the trial, but the sheriff’s office was
unable to locate him.

Petitioner testified he again returned to Marlboro County by bus
on the morning of November 23, 1994. He stayed several days with a cousin,
but also visited the home and automobile repair shop of Joe Stuckey on Thanksgiving
Day. In December 1994, Petitioner moved into the mobile home with co-defendants
Ricky Stuckey and Robert Graham. He testified he had been to that mobile home
- where Victim had been seen during the cookout and party - only once. Petitioner
worked some at Joe Stuckey’s shop and heard that Victim’s body had been found,
but testified he did not hear anyone say they were involved in the crimes.

In January 1995, while he was working at the shop, police examined
Petitioner’s identification but did not question him. In February 1995, Petitioner
received a subpoena to appear before a federal grand jury investigating Victim’s
murder. Petitioner testified he returned to New York later that month. In
April 1995, Petitioner returned to Columbia to testify before the grand jury.
He was told he was not on the grand jury witness list and would not be called.
Petitioner asked the secretary to call Marlboro County authorities because he
had heard they had warrants for him. He was transported to Marlboro County,
where he was arrested for murder and read his Miranda rights.

During direct examination, Petitioner testified as follows:

Q. And they read you your rights at that time?
A. Yes, sir.
Q. Told you you were under arrest?
A. Yes, sir.
Q. Did they ask you to make a statement?
A. Yes, sir.
Q. And what did you tell them?
A. I didn’t want to make a statement about something I didn’t know about.
Q. And at that point, you were arrested?
A. Yes, sir.

The following testimony occurred during cross-examination
of Petitioner:

Q. Well, let’s talk some more about your story here. Now,
the truth is the first time that you have told anybody in law enforcement this
story about your being in New York is today, isn’t it?
A. Yes, sir.
Q. You ain’t - for two-and-a-half years, you ain’t never
told this story.

Petitioner raised a Doyle objection, arguing the prosecutor
was not allowed to question Petitioner about his post-arrest, post-Miranda
silence or his failure to tell police he was in New York when the crimes occurred.
He argued such questions violate his right to remain silent. The prosecutor
contended Petitioner was in Marlboro County when the crimes occurred. Because
Petitioner was asserting he was not in the county, the State was entitled to
show that he never told police that at any time. The trial judge overruled
Petitioner’s objection.

The cross-examination continued:

Q. Let’s go back to where we stopped. What I was asking
was the police talked to you, did they not?
A. That’s according to when you’re talking about.
Q. Well, let’s talk about when you came to Columbia. You
told your lawyer that you came down to Columbia?
A. Yes, sir.
Q. And the police wanted to talk to you?
A. Yes, sir.
Q. And you talked to them, agreed to talk to them, did
you not?
A. Yes, sir.
Q. And you told them at that point in time, yeah, I don’t
know anything about this thing. I was in New York.
A. No, I never mentioned where I was. I just told them
I didn’t know what they were talking about and they asked me did I want to make
a statement. I told them no. Then they asked - they kept asking me to make
statements. I told them I wanted to speak to a lawyer.
Q. And when you told them you wanted to speak to a lawyer,
they stopped, didn’t they?
A. No, they continued to ask me questions.
Q. Well, did you tell them anything?
A. No.
Q. So that’s my point. They stopped you at some point
because you’re here and you didn’t tell them anything. Right?
A. Even after they talked to me - the same day I came to Marlboro County up
from Columbia, that’s the same day they appointed me a lawyer. They took me
to Charlie Usher I believe his name is.
Q. Uh-huh.
A. And appointed a lawyer. But they still came to question me.

Following Petitioner’s testimony, the judge instructed the jury:

[t]here is some testimony in this record regarding this individual of an alleged
statement that he makes. In this connection, I tell you that a defendant has
the absolute right to make a statement. If he elects to remain absolutely silent,
that is his absolute constitutional right, and his silence may not be used against
him. A defendant if he elects to make a statement may stop at any time and
thereafter elect to remain silent. And if, should that occur, that silence
cannot and must not be used against him in any way whatsoever. The fact that
he elects initially or later, that fact cannot be used against any defendant
and this defendant whatsoever.

In closing arguments, neither Petitioner nor the State mentioned
Petitioner’s testimony about what he did or did not tell police after his arrest.
Petitioner was found guilty on all counts.
[5] He was sentenced to life in prison for murder, thirty years consecutive
for first-degree criminal sexual conduct, five years concurrent for criminal
conspiracy. [6]

On appeal, Petitioner contended the State’s cross-examination on his post-arrest,
post-Miranda silence was a violation of due process pursuant to Doyle.
The Court of Appeals held no Doyle violation occurred because Petitioner
emphasized his cooperation with authorities in his direct examination, opening
the door to the State’s cross-examination. The Court of Appeals further concluded
any error was harmless because it was cured by the trial court’s charge following
the solicitor’s cross-examination.

ISSUE

Did the Court of Appeals err in holding Petitioner, during direct examination,
presented the defense he had cooperated with police, thus opening the door to
otherwise impermissible cross-examination on his post-arrest, post-Miranda
silence?

DISCUSSION

Petitioner contends the Court of Appeals erred in holding he “opened
the door” to a Doyle violation. Petitioner argues he did not assert
he cooperated with police, but only explained his travels between South Carolina
and New York and his contacts with police in anticipation the prosecutor would
argue he was fleeing from the crimes. Furthermore, Petitioner asserts the error
was not harmless and was not cured by the judge’s instruction immediately following
the solicitor’s cross-examination.

The United States Supreme Court has held the Due Process Clause of
the Fourteenth Amendment is violated when a state prosecutor seeks to impeach
a defendant’s exculpatory story, told for the first time at the trial, by cross-examining
him about his post-arrest silence after receiving the Miranda warnings.
Doyle, 426 U.S. at 619, 96 S.Ct. at 2245, 49 L.Ed.2d at 98.

In Doyle, the state prosecutor presented evidence a police
informant sold marijuana to defendants. The defendants testified they had been
framed by the informant because they were not the sellers, but had intended
to buy marijuana from the informant. Both were arrested within minutes
of the alleged crime, were advised of their Miranda rights, and chose
not to make any substantive post-arrest statements. During cross-examination
at separate trials, the prosecutor questioned the defendants why they did not
promptly assert their innocence after their arrest by telling police their exculpatory
story. Doyle, 426 U.S. at 611-614, 96 S.Ct. at 2243-2244, 49 L.Ed.2d
at 94-96.

In finding a due process violation, the Court rejected the State’s
arguments such cross-examination was necessary to show a defendant may have
concocted a false, exculpatory story after his arrest.

Silence in the wake of these warnings may be nothing more than the arrestee’s
exercise of these Miranda rights. Thus, every post-arrest silence is insolubly
ambiguous because of what the State is required to advise the person arrested.
Moreover, while it is true the Miranda warnings contain no express assurance
that silence will carry no penalty, such assurance is implicit to any person
who receives the warnings. In such circumstances, it would be fundamentally
unfair and a deprivation of due process to allow the arrested person’s silence
to be used to impeach an explanation subsequently offered at trial.

In limited exceptions to the general rule, the State may cross-examine
a defendant about his post-arrest, post-Miranda silence when he offers
an exculpatory story at trial and claims he told police the same version upon
arrest. Doyle, 426 U.S. at 619 n.11, 96 S.Ct. at 2245 n.11, 49 L.Ed.2d
at 98 n.11. Similarly, Doyle does not bar cross-examination into prior
inconsistent statements made by a defendant who voluntarily speaks after he
has received the Miranda warnings. Anderson v. Charles, 447 U.S.
404, 408, 100 S.Ct. 2180, 2182, 65 L.Ed.2d 222, 226 (1980); State v. Kimsey,
320 S.C. 344, 465 S.E.2d 128 (Ct. App. 1995).

The State may point out a defendant’s silence prior to arrest, or
his silence after arrest but prior to the giving of the Miranda warnings,
in order to impeach the defendant’s testimony at trial. Due process is not
violated because “[s]uch silence is probative and does not rest on any implied
assurance by law enforcement authorities that it will carry no penalty.” Brecht
v. Abrahamson, 507 U.S. 619, 628, 113 S.Ct. 1710, 1716, 123 L.Ed.2d 353,
366 (1993); Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d
86 (1980).

The Doyle rule, as well as other principles prohibiting the
prosecutor from using or commenting on a defendant’s exercise of his constitutional
rights, is “rooted in due process and the belief that justice is best served
when a trial is fundamentally fair.” Edmond v. State, 341 S.C. 340,
346, 534 S.E.2d 682, 685 (2000). “The obvious purpose is to try to prevent
jurors from improperly inferring the accused is guilty simply because he exercised
rights guaranteed him by the state and federal constitutions. Such an inference
is constitutionally impermissible because the burden at all times remains upon
the State to prove beyond a reasonable doubt every element of a crime with which
the accused is charged.” Id.

This case presents a clear Doyle violation. Petitioner voluntarily
returned to South Carolina, as required by a federal subpoena, then voluntarily
surrendered to Marlboro County authorities who had warrants for his arrest.
He was arrested and read his Miranda rights. He chose not to speak to
police, other than to deny knowledge of the crimes and ask for a lawyer.

At trial, the solicitor questioned Petitioner at length about his
failure to present his alibi defense to police after he was arrested and given
the Miranda warnings. The solicitor’s questions were intended to focus
the jury’s attention on Petitioner’s post-arrest silence as substantive evidence
of his guilt, a prohibited tactic. SeeState v. Smith, 290 S.C.
393, 394-95, 350 S.E.2d 923, 924 (1986) (finding Doyle violation where
solicitor asked psychiatrist if he knew defendant had refused to make a statement
to police; granting new trial as it was not harmless error). The constitutionally
impermissible inference the jury may have drawn from testimony about his post-arrest
silence is Petitioner was guilty simply because he remained silent. SeeEdmond, 341 S.C. 340, 534 S.E.2d 628 (granting new trial to applicant
in post-conviction relief action where testimony and prosecutor’s closing improperly
referred to defendant’s exercise of right to remain silent and right to counsel);
see alsoState v. Reid, 324 S.C. 74, 476 S.E.2d 695 (1996) (finding
Doyle violation when officer, after arresting defendant and advising
him of his Miranda rights, was asked whether defendant inquired about
the condition of his passengers after an accident; granting new trial as it
was not harmless error), overruled on other grounds byState v. Watson,
349 S.C. 372, 563 S.E.2d 336 (2002); State v. Myers, 301 S.C. 251, 258-259,
391 S.E.2d 551, 555 (1990) (finding an unpreserved Doyle violation but
strongly cautioning solicitors against violating the prohibition by commenting
on defendant’s exercise of constitutional rights); State v. Holliday,
333 S.C. 332, 340, 509 S.E.2d 280, 284 (Ct. App. 1998) (noting that solicitors
have been repeatedly warned by appellate courts against violation of Doyle
prohibition; and granting new trial as violation was not harmless error); State
v. Gray, 304 S.C. 482, 405 S.E.2d 420 (Ct. App. 1991) (finding Doyle
violation where solicitor cross-examined defendant on failure to tell police
his exculpatory story; and granting new trial as violation was not harmless
error).

The State contends Petitioner opened the door to any Doyle
violation by trying to convince the jury he had fully cooperated with police.
Therefore, the prosecutor properly was allowed to cross-examine Petitioner to
show he had not cooperated with police, but in fact had remained silent. [7]

The State correctly explains other courts have held a defendant may open the
door to cross-examination for impeachment purposes by testifying or creating
the impression through his defense presentation he has cooperated with police
when, in fact, he has not. Such cross-examination is permissible, as the Supreme
Court recognized in Doyle by noting a prosecutor may challenge a defendant’s
contention he told his exculpatory story to police when he actually did not.
Doyle, 426 U.S. at 619 n.11, 96 S.Ct. at 2245 n.11, 49 L.Ed.2d at 98
n.11. Seee.g., Kibbe v. Dubois, 269 F.3d 26, 34-35 (1st
Cir. 2001) (explaining Doyle is not violated when defendant opens the
door to cross-examination on post-arrest silence by testifying on direct he
told police what had happened and lawyer stated the same in opening and closing);
United States v. Reveles, 190 F.3d 678, 684-685 (5th Cir. 1999) (finding
no Doyle violation because “[w]hen a defendant attempts to convince a
jury that he was of a cooperative spirit, Doyle does not tie the hands
of prosecutors who attempt to rebut this presentation by pointing to a lack
of cooperation”); Earnest v. Dorsey, 87 F.3d 1123, 1135 (10th Cir. 1996)
(finding no Doyle violation because “prohibition against reference to
post-arrest silence does not allow the defendant to freely and falsely create
the impression that he has cooperated with police when, in fact, he has not”);
United States ex rel. Saulsbury v. Greer, 702 F.2d 651 (7th Cir. 1983)
(finding no Doyle violation where defendant opened the door to cross-examination
on post-arrest silence by testifying on direct he did not make a statement to
the sheriff because it could be used against him and, since he was on parole,
he did not think the sheriff would believe him); Wentz v. State, 766
N.E.2d 351, 362 (Ind. 2002) (finding no Doyle violation because defendant
opened the door to cross-examination on post-arrest silence by testifying on
redirect he had answered all the police’s questions).

In the State’s view, Petitioner claimed he cooperated with police
and thus opened the door to an otherwise improper line of questioning by (1)
testifying on direct examination he voluntarily returned to South Carolina and
he did not give a statement to police upon his arrest; (2) inferring to the
jury he had told his alibi story to authorities by testifying he was staying
with Butch Moore when the crimes occurred, but the sheriff had not been able
to serve a subpoena on Moore shortly before or during the trial; [8] (3) inferring to the jury he
really wanted to speak to police but they did not want to talk to him, as they
only once asked for his identification and later served a federal subpoena on
him; and (4) testifying on cross-examination before the challenged inquiry “if
I knew anything about any of this, I would have been talking to the police.
I would have talked to the people in Columbia a long time ago.”

We conclude Petitioner did not open the door to any Doyle
violation. Petitioner did not, explicitly or implicitly, assert he cooperated
with police. The focus of Petitioner’s defense, as revealed by his actions
before his arrest and at his arrest, as well as his trial testimony, was he
was not present when the crimes occurred, knew nothing about the crimes or who
was involved, and so had nothing to tell police.

In an analogous case, a defendant made no post-arrest statement to
police and asserted an alibi defense for the first time at trial in an armed
robbery case in which “[t]here was no dispute that the crimes charged had been
committed by someone.” State v. Garcia, 887 P.2d 767 (N.M. Ct. App.
1994). The prosecutor questioned the defendant why he did not mention his alibi
defense to a police detective in the hour he spent traveling with the detective
after his arrest.

The New Mexico court concluded the prosecutor’s questions violated
due process, reasoning a defendant who chooses to remain silent about his alibi
defense until trial does not open the door to this line of questioning. “[T]here
is nothing to impeach until the defense has come forward with an explanation.
By the State’s reasoning, offering an explanation [for the first time at trial]
would always open the door for the impeachment.” Endorsing the State’s door-opening
argument in such a case is not appropriate because it “would completely undercut
Doyle.” Garcia, 887 P.2d at 772.

We further conclude the trial error in this case was not harmless; nor was
it cured by the judge’s instruction. When a Doyle violation occurs,
the conviction still may be upheld when a review of the entire record establishes
beyond a reasonable doubt the error was harmless. “To be harmless, the record
must establish the reference to the defendant’s right to silence was a single
reference, which was not repeated or alluded to; the solicitor did not tie the
defendant’s silence directly to his exculpatory story; the exculpatory story
was totally implausible; and the evidence of guilt was overwhelming.” State
v. Pickens, 320 S.C. 528, 530-531, 466 S.E.2d 364, 366 (1996). “An instruction
to disregard incompetent evidence is usually deemed to have cured the error
unless on the facts of the particular case it is probable that, notwithstanding
the instruction, the accused was prejudiced.” State v. Smith, 290 S.C.
393, 395, 350 S.E.2d 923, 924 (1986).

In this case, the prosecutor questioned Petitioner thoroughly about
his post-arrest, post-Miranda silence, asking him no less than ten questions
aimed at showing Petitioner never presented his alibi defense to police. The
solicitor tied Petitioner’s silence directly to his alibi defense, asking him,
for example, “[n]ow, the truth is the first time that you have told anybody
in law enforcement this story about your being in New York is today, isn’t it?”
and “[y]ou ain’t - for two-and-a-half years, you ain’t never told this story.”

Petitioner’s story was not totally implausible. He had traveled
between South Carolina and New York since he was a child. He had documentary
proof (the rental car receipt) he had left South Carolina before the crimes
occurred. His irregular arrivals and departures, along with the fact he moved
into the co-defendants’ mobile home after the crimes occurred and lived there
for some two months, may have caused the State’s two key witnesses to be unable
to accurately recall whether they saw him at the crime scene or just living
at the mobile home in following weeks.

Finally, the evidence against Petitioner was not overwhelming. No physical
or trace evidence was introduced linking Petitioner to the crimes. The case
against Petitioner consisted primarily of the testimony of two witnesses, Davis
and Ransom. Both testified about their extensive history of alcohol and substance
abuse, as well as their memory lapses, before and during the period the crimes
occurred. Both Davis and Ransom were interviewed by police numerous times and
faced the death penalty until they began cooperating. The testimony of these
key witnesses cannot be deemed overwhelming, particularly when viewed in light
of the likely impact the State’s improper questioning had on jurors’ perception
of Petitioner’s credibility. SeeState v. Smith, 309 S.C. 442,
447, 424 S.E.2d 496, 499 (1992) (admission of testimony about prior drug use
which likely destroyed defendant’s credibility, in a case where witness credibility
was crucial to jury’s determination of who and what to believe, could not be
deemed harmless error); State v. Reeves, 301 S.C. 191, 194, 391 S.E.2d
241, 243 (1990) (“[e]rror which substantially damages the defendant’s credibility
cannot be held harmless where such credibility is essential to his defense”).

CONCLUSION

We reverse the Court of Appeals concluding (1) the prosecutor’s questions
violated Petitioner’s right to due process as established in Doyle; (2)
Petitioner did not in his testimony or the presentation of his defense attempt
to create the impression that he had cooperated with police, and therefore did
not open the door to a Doyle violation; and (3) the violation under these
facts and circumstances was not harmless error and was not cured by the judge’s
cautionary instruction. We reverse Petitioner’s convictions and remand for
a new trial.

[1] The six defendants jointly tried under
the “hand of one, hand of all” theory were Petitioner, Alfonzo Staton, Leroy
Staton, Ricky Stuckey, Jeffrey Walls, and Robert Graham. All faced the same
four charges as Petitioner except Robert Graham, who was charged with everything
except murder.

[4] A friend rented the car with a credit card
and Petitioner repaid him in cash. The rental agreement listed Petitioner
as the driver.

[5] The jury found all co-defendants guilty
on all counts, except Alfonzo Staton was found not guilty of first-degree
CSC and Robert Graham (not charged with murder) was found not guilty of kidnapping
or CSC.

[7] The State also argues the Court should
find Petitioner’s argument unpreserved because his lawyer did not object after
the first allegedly improper question. Petitioner’s lawyer objected after
the prosecutor’s second question. The State’s argument is without merit.
SeeState v. Gray, 304 S.C. 482, 405 S.E.2d 420 (Ct. App. 1991)
(finding Doyle objection was sufficiently contemporaneous where defendant’s
lawyer objected after second improper question).

[8] Petitioner testified he left South Carolina
on November 7, 1994, to return to New York, and returned to South Carolina
on November 23, 1994. Victim apparently was kidnapped on November 12, 1994,
and murdered a day or two later. Thus, Petitioner testified he was in New
York - not staying with Moore - when the crimes occurred.